No. 80-187 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

BRUCE E. KEASTER and JANET M. 

KEASTER, husband and wife, 

Plaintiffs and Respondents, 

VS. 

ANDY BOZIK, a single man; 

FEDERAL LAND BANK OF SPOKANE, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable John McCarvel, Judge presiding. 

Counsel of Record: 

For Appellants: 

Robert J. Emrnons, Great Falls, Montana 

For Respondents: 

Graybill, Ostrem, Warner and Crotty, Great Falls, Montana 

Submitted on briefs: November 26, 1980 

Decided: KB 1 1, 1981 

Filed: fE8 :b 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Bruce E. and Janet Keaster brought this action for specific performance of a real estate option in the Cascade County 

District Court on April 14, 1978. The District Court entered a 

judgment requiring defendant Andy Bozik to comply with the terms 

of the option and awarding actual damages of $15,300 to the 

plaintiffs and $5,200 to the defendant. Defendant Andy Bozik 

appeals. 

Bruce Keaster, the buyer, and Andy Bozik, the seller, 

entered into an option to purchase real estate on April 15, 1977. 

The option contained a legal description of the subject 

property, 899 acres of Bozik's land. The agreement was a standard Farm Home Administration (FHA) option contract and included 

the following term. 

"The offer herein shall remain irrevocable for a 

period of six months from the date hereof and 

shall remain in force thereafter until one (1) 

year from the date hereof unless earlier terminated by the Seller. The Seller may terminate 

this offer at any time after the six (6) months' 

irrevocable period provided herein by giving to 

the Buyer ten (10) days' written notice of 

intention to terminate at the address of the 

Buyer. Acceptance of this option by the Buyer 

within ten (10) days af ter such notice is 

received by him shall constitute a valid acceptance of the option." 

The option signed on April 15, 1977, stated a consideration of "$5.00 in hand paid and other valuable 

consideration" and further provided that "this option is given to 

enable the Buyer to obtain a loan insured or made by the United 

States of America, acting through the Farmers Home Administration, United States Department of Agriculture . . . for 

the purchase of said property. It is agreed that the Buyer's 

efforts to obtain a loan constitute a part of the consideration 

for this option. . ." 

The sales price was $200,000, $56,000 as a down payment 

and $144,000 over 30 years at 6% interest (annual payment of 
$10,461.00). The contract was amended on April 26, 1977, to make 

the contract payable over 20 years at an annual payment of 

$12,554.57. 

On May 2, 1977, Keaster and Bozik signed a "declaration of 

interest and agreement" acknowledging the option to purchase. 

This document was recorded with the Cascade County clerk and 

recorder on May 25, 1977. 

In early April of 1978, respondent Bruce Keaster attempted 

to exercise the option. Appellant Andy Bozik refused to convey 

the property. 

Following the commencement of this action on April 14, 

1978, Andy Bozik filed a counterclaim seeking reformation of the 

contract and actual damages for Keaster's use of his pasture. 

The damages arose from a separate transaction and are not an 

issue here. 

Trial commenced on January 17, 1980. During the proceedings respondent's counsel introduced evidence of actual damages suffered by Keaster af ter the filing of the complaint. He 

sought to amend the pleadings to include a prayer for damages for 

loss of crops and pasturage occasioned by the appellant's refusal 

to convey the property. The District Court allowed the amendment. 

Testimony adduced at trial reveals that Bruce Keaster and 

Andy Bozik met several times in late March or early April of 1977 

in negotiating the option. Keaster proposed an option which provided for a $60,000 down payment and interest at 4%. Bozik 

refused the down payment amount for income tax reasons and 

objected to the interest rate. 

The transcript also reveals that the appellant never 

attempted to give a written notice of termination. Bozik 

testified that although Keaster and Roger Smith, the FHA county 

supervisor, told him that written notice was required, he believed 

an oral notice was sufficient since the document was never 

notarized. In addition Bozik testified that he had a copy of the 
option agreement for the entire period. 

Appellant testified that he told the respondent and Roger 

Smith more than six months after the option was signed that he 

was not going to sell. Keaster testified that the first time he 

learned of the appellant's intention not to comply with the 

option was on April 6, 1978. Keaster stated that on that day he 

presented a written notice of acceptance of the option, an earnest money check for $1,000 and a buy-sell agreement to Bozik at 

Bozik's residence. The notice of acceptance was drafted by 

respondent's attorney and dated April 5, 1978, and the check was 

dated April 6, 1978. Bozik testified that Keaster presented the 

check to him on April 14, 1978, and that he had never seen the 

other documents. 

The FHA certified and approved Bruce and Janet Keaster for 

a loan of $46,000 prior to the expiration of the option period. 

The Keasters had also arranged to borrow $10,000 from a third 

party and had arranged to obtain $56,000 from the Belt Valley 

Bank for the down payment until they received the loan proceeds 

from the FHA and the third party. 

At trial con£ licting evidence was presented regarding the 

negotiations of the parties and their conduct before and af ter 

the signing of the agreement and at the time of the attempted 

exercise of the option. Of primary significance is an oral 

agreement that the parties intended Bozik to have the use of a 

house and garage on the property for as long as he desired. 

Bruce Keaster testified that at the time the option contract was 

executed it was agreed that Andy Bozik would have the use of the 

house and garage, but not the use of the other buildings. He 

understood that Bozik was to have "something like" a life estate 

in the house and garage. When asked why this provision was not 

included in the option, he testified that it was his impression 

that this provision would be put in upon closing. Andy Bozik 

testified that it was his understanding that none of the 

buildings were to be included in the sale. 

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The District Court entered its findings of fact, conclusions of law and judgment on February 15, 1980. The court found 

that the parties had agreed that Andy Bozik would have the use 

and occupancy of the house and garage located on the property for 

as long as he chooses to live there; that the option was never 

revoked according to its terms; that Bruce Keaster gave written 

notice of his acceptance of the option on April 6, 1978; that 

Andy Bozik breached the option agreement on the same date by 

refusing to sell; that the plaintiffs became entitled to the 

possession of the property except the house and garage on April 

6, 1978; that the plaintiffs were entitled to $15,300 for the 

loss of profits for the 1978 and 1979 crop seasons; and that Andy 

Bozik was entitled to $5,200 for pasture rental arising from a 

separate transaction. The court concluded that the option 

was valid and properly exercised and that the plaintiffs 

were entitled to specific performance of the agreement. Andy 

Bozik was given "the use and occupancy of the residence and 

garage for as long as he chooses to live there." 

Appellant Bozik asserts numerous specifications of error 

which can be consolidated into the following major issues: 

1) Whether the District Court erred in allowing the 

amendment of the complaint during the trial to include damages 

for loss of the use of the property? 

2) Whether there was adequate consideration to support 

specific enforcement of the option? 

3) Whether the option was sufficiently complete and def inite to af ford the remedy of specific performance? 

The issue concerning amendment of the complaint during 

trial is governed by the second sentence of Rule 15 (b), 

M.R.Civ.P., which states: 

"If evidence is objected to at the trial on the 

ground that it is not within the issues made by 

the pleadings, the court may allow the pleadings 

to be amended and shall do so freely when the 

presentation of the merits of the action will be 

subserved thereby and the objecting party fails 
to satisfy the court that the admission of such 

evidence would prejudice him in maintaining his 

action or defense upon the merits. The court may 

grant a continuance to enable the objecting 

party to meet such evidence ." 

It is within the discretion of the trial court whether to allow 

such amendment. Nothing in the record indicates an abuse of 

discretion. 

At trial, Bozik's counsel objected to admission of 

testimony by Keaster as to damages for the use of the property 

and for loss of prof its for the crop seasons of 1978 and 1979, 

and further objected to the Keaster's motion to amend the 

pleadings. The trial court allowed an offer of proof and 

reserved ruling until briefs were submitted after trial. The 

decision of the court to allow the amendment was based upon the 

prayer in the complaint for "such other and further relief as the 

Court deems just and proper. " 

Appellant claims he was denied the opportunity to prepare 

his case on the issue and therefore was denied due process. He 

further states that respondent knew of the claim prior to trial 

and should have filed a supplemental pleading or amended the 

pretrial order. Respondent asserts that appellant could not have 

been surprised by a claim for damages which flowed naturally from 

appellant's refusal to perform the contract. 

The amendment sought by the Keasters during trial did not 

change the theory of liability or affect the entire complexion of 

the lawsuit, as did the amendments sought and refused by the trial 

court in Brothers v. Surplus Tractor Parts Corporation (1973), 

161 Mont. 412, 506 P.2d 1362, and Montgomery v. Gehring (1965), 

145 Mont. 278, 400 P.2d 403. It is within the trial court's 

discretion to allow amendment of the pleadings during trial if 

the objecting party fails to show that an amendment would result 

in prejudice. The failure of respondents to file a supplemental 

pleading or to amend the pretrial order as soon as the damages 

accrued is not in itself sufficient to compel denial of a motion 
to amend during trial. Union Interchange, Inc. v. Parker (1960), 

138 Mont. 348, 357 P.2d 339. While Rule 16, M.R.Civ.P., states 

that the pretrial order is to control the subsequent course of 

action, it further provides for modification at the trial. 

Appellant is in no position to complain of a denial of due 

process since he made no motion for a continuance to enable him 

to defend against Keaster's claim for damages. Union 

Interchange, supra, and Clack v. Clack (1935), 98 Mont. 552, 41 

P.2d 32. 

With regard to the second issue, appellant relies upon 

section 27-1-415 (I), MCA, which provides: 

"Specific performance cannot be enforced against 

a party to a contract . . . "(1) if he has not received an adequate consideration for the contract. " 

It is argued that five dollars is not adequate consideration for 

a contract that "ties up" land worth $200,000 for one year. This 

argument, however, distorts the facts. The option recited consideration of five dollars and other valuable cons ideration. The 

buyers' efforts to obtain an FHA loan expressly constituted part 

of the consideration. The option was irrevocable for six months, 

after which the appellant could have revoked by giving written 

not ice. 

In support of his argument, Appellant Bozik cites Rude v. 

Levy (1908), 43 Colo. 482, 96 P. 560, wherein it was held that 

consideration of one dollar was inadequate for an option to 

purchase land worth $900. We decline to follow this view. The 

parties, from equal bargaining positions, agreed upon the amount 

of consideration which they deemed sufficient to support the 

option. In the absence of evidence of fraud, if the purchase 

price for the land is adequate, even nominal consideration is 

adequate to support an option. Brooks v. LeGrand (Okla. 1967), 

435 P.2d 142. See also Honeyfield v. Lambeth (Mo.App. 1975), 519 

S.W.2d 342; Board of Control of Eastern Michigan Univ. v. Burgess 
(1973), 45 Mich.App. 183, 206 N.W.2d 256; Allen v. Rakes (1971), 

359 Mass. 1, 267 N.E.2d 628. The consideration recited by the 

option was sufficient to create a valid contract as well as adequate to allow the equitable remedy of specific performance. 

Appellant next contends that the contract was not suff iciently complete and definite to be af forded the remedy of 

specific performance. Section 27-1-412(6), MCA, provides: 

"The following obligations cannot be specifically enforced: 

"(6) an agreement the terms of which are not 

sufficiently certain to make the precise act 

which is to be done clearly ascertainable." 

Appellant Bozik asserts that the option was deficient for two 

reasons. First, he asserts that the use and occupancy of the 

house and garage or the exclusion of all the buildings was a 

material element left out of the contract. Second, it is 

asserted that the failure to specify a date for the down payment, 

the annual payments and the commencement of interest is fatal. 

On the other hand, the respondent contends that all the material 

elements of the contract are included and that any terms not 

included in the contract are collateral. 

It must be noted at the outset that the option contract as 

written and signed by the parties contains no ambiguity and is 

sufficiently definitive to be capable of specific enforcement 

when one looks solely to the four corners of the instrument. The 

option contract contains a legal property description, expresses 

the consideration for the grant of the option, states the terms 

for a revocation, provides the time in which the option is 

exercisable, reveals the purchase price including the amount of 

down payment and annual payment, and states the interest rate. 

In addition the contract states that it includes a full statement 

of any reservations or exceptions and further has left blank a 

clause that states "Insert here conditions peculiar to this part icular transaction ." 

In his counterclaim, Appellant Bozik sought reformation of 
the contract to include a reservation of the farm house, garage 

and other outbuildings together with the land upon which the 

buildings are located. He alleged that by mutual mistake and 

inadvertence this material part of the contract between the parties was omitted from the writing. 

At trial the testimony concerning the parties' intentions 

with regard to the buildings was conflicting. Keaster testified 

that during the negotiations prior to the execution of the 

option, the parties agreed that Bozik was to have the right to 

use the house and garage for as long as he wanted to live there. 

He understood the house and garage were not to be excluded from 

the sale, but Bozik would have "something like" a life estate. 

Bozik testified that prior to executing the option he had told 

Keaster the buildings were not for sale. His testimony also 

revealed that he was under financial pressures to sell the 

property, and that those pressures had diminished subsequent to 

the date of the option agreement. By September of 1977, Bozik no 

longer wanted to sell any of his property. 

On the basis of the evidence, the trial court found that 

the parties had reached a mutual understanding that Bozik would 

be allowed to use the house and garage for as long as he desired. 

According to Rule 52(a), M.R.Civ.P.: 

" . . . Findings of fact shall not be set aside 

unless clearly erroneous, and due regard shall 

be given to the opportunity of the trial court 

to judge of the credibility of the witnesses." 

There is sufficient evidence to support the finding of the trial 

court. 

Without stating specifically that it was doing so, the 

trial court reformed the contract to reflect the intentions of 

the parties as it found them to be at the time the contract was 

executed. When by mutual mistake the agreement of the parties is 

not contained in the written instrument, the instrument may be 

reformed so as to express that intention. Section 28-2-1611, 
MCA. The trial court did not reach beyond the evidence to supply 

a term not agreed upon by the parties. The evidence showed that 

the parties had a general understanding that Bozik would be 

allowed to remain in his home, but they had not determined 

whether Bozik was to have a life estate or some other interest. 

Both parties believed they could make the necessary changes in 

the documents at the time of closing. However, since the 

appellant refused to honor the option when it was exercised, the 

proposed contract for deed was not finalized and executed. As a 

result the oral agreement was not reduced to writing. It was 

within the equitable power of the trial court to correct this 

mistake by reforming the contract, and then specifically 

enforcing it. Section 28-2-1614, MCA. The contract as reformed 

was sufficiently definite and complete with regard to the subject 

matter to allow specific performance . Appellant further contends the option was incomplete in 

that it failed to specify dates for the down payment, the annual 

payments, and the commencement of the interest on the unpaid 

balance. The option contract as finalized by the parties 

included the following term: 

"The total purchase price for said property 

is Two Hundred Thousand Dollars; said amount 

payable . . . $56,000.00 as a down payment; 

balance of $144,000.00 on a contract for deed, 

payable at the rate of $12,554.57 per annum for 

the term of 20 years. Interest at 6% per 

annum. Copy of the proposed contract attached 

hereto. " 

It is clear from the proposed contract for deed that the parties 

contemplated the making of the down payment on the date the 

contract was executed, with interest to commence on that date. 

The date supplied by the proposed contract for the annual 

payments was December 1 of each year, commencing in 1978. The 

buy-sell agreement tendered at the time of the attempted exercise 

of the option provided that possession of the property was to be 

delivered on April 15, 1978, which was the end of the option 

period. 

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The fact that these terms were not specifically expressed 

in the option contract does not render the option unenforceable. 

It is well settled that absolute certainty in every detail is not 

a prerequisite for specific performance. Gropp v. Lotton 

(1972), 160 Mont. 415, 503 P.2d 661; Steen v. Rustad (1957), 132 

Mont. 96, 313 P.2d 1014. Those matters which are collateral or 

which go to the performance of the contract are not essential and 

need not be expressed in the contract. Steen v. Rustad, supra; 

Johnson v. Elliot (1950), 123 Mont. 597, 218 P.2d 703. When the 

time of performance is not specified, a reasonable time will be 

implied. Section 28-3-601, MCA. The trial court has the 

inherent power to set up a schedule for the performance of the 

obligations and the commencement of interest. Rogers v. Relyea 

(1979)t Mont . , 601 P.2d 37, 36 St.Rep. 1706. These 

adjustments are necessary to implement the decree of specific 

performance. 

The judgment of the District Court is a£ f irmed, and the 

case is remanded for further orders specifically enforcing the 

contract consistent with this opinion. 

Chief Justice 

We concur: 

This cause was submitted prior to January 5, 1981.